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Exhibit 10.9
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Agreement"),
dated as of November 21, 1996, made by BBOX HOLDING COMPANY, a Delaware
corporation (the "Guarantor"), in favor of MELLON BANK, N.A., a national
banking association (the "Lender").
W I T N E S S E T H:
WHEREAS, Black Box Corporation of Pennsylvania, a Delaware
corporation formerly known as Black Box Corporation (the "Borrower"), and the
Lender have entered into that certain Credit Agreement, dated as of May 6,
1994, as amended by that certain First Amendment to Credit Agreement, dated as
of March 30, 1995, by that certain Second Amendment to Credit Agreement, dated
as of August 1, 1995, by that certain Third Amendment to Credit Agreement,
dated as of April 1, 1996, by that certain Fourth Amendment to Credit
Agreement, dated as of November , 1996, and by that certain Fifth Amendment to
Credit Agreement, dated as of November 21, 1996 (as amended and as further
amended from time to time, the "Credit Agreement");
WHEREAS, the Guarantor, as owner of all of the outstanding
shares of stock of the Borrower, derives substantial direct and indirect
benefit from the transactions contemplated by the Credit Agreement;
WHEREAS, it is a condition precedent to the effectiveness of
the Fifth Amendment to Credit Agreement that the Guarantor execute and deliver
this Agreement; and
WHEREAS, this Agreement is made by the Guarantor among other
things to induce the Lender to enter into the Fifth Amendment to Credit
Agreement.
NOW, THEREFORE, in consideration of the premises, and
intending to be legally bound, the Guarantor hereby agrees as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the meanings given to them in, or by reference in, the
Credit Agreement. In addition to the other terms defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"Guaranteed Obligations" shall mean all obligations from time
to time of the Borrower to the Lender under or in connection with any
Loan Document, whether for principal, interest, fees, indemnities,
expenses or otherwise, and all refinancings or refundings thereof,
whether such obligations are direct or indirect, otherwise secured or
unsecured, joint or several, absolute or contingent, due or to become
due, whether for payment or performance, now existing or hereafter
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arising (specifically including but not limited to obligations arising
or accruing after the commencement of any bankruptcy, insolvency,
reorganization or similar proceeding with respect to the Borrower or
any other Person, or which would have arisen or accrued but for the
commencement of such proceeding, even if the claim for such obligation
is not enforceable or allowable in such proceeding). Without
limitation of the foregoing, such obligations include all obligations
arising from any extensions of credit under or in connection with the
Loan Documents from time to time, regardless of whether any such
extensions of credit are in excess of the amount committed under or
contemplated by the Loan Documents or are made in circumstances in
which any condition to extension of credit is not satisfied. Without
limitation of the foregoing, the Lender (or any successive assignee or
transferee) from time to time may assign or otherwise transfer all or
any portion of its rights or obligations under the Loan Documents
(including, without limitation, all or any portion of any commitment
to extend credit), or any other Guaranteed Obligations, to any other
Person, and such Guaranteed Obligations (including, without
limitation, any Guaranteed Obligations resulting from extension of
credit by such other Person under or in connection with the Loan
Documents) shall be and remain Guaranteed Obligations entitled to the
benefit of this Agreement.
"Responsible Officer" shall mean the chief executive officer,
chief operating officer, chief financial officer, chief accounting
officer or general counsel of the Guarantor or any other officer of
the Guarantor involved principally in its financial administration or
its controllership function or, in each case, any Person who,
regardless of title, is performing the duties of any of the foregoing.
ARTICLE II
GUARANTY AND SURETYSHIP
2.01. GUARANTY AND SURETYSHIP. The Guarantor hereby
absolutely, unconditionally and irrevocably guarantees and becomes surety for
the full and punctual payment and performance of the Guaranteed Obligations as
and when such payment or performance shall become due (at scheduled maturity,
by acceleration or otherwise) in accordance with the terms of the Loan
Documents. This Agreement is an agreement of suretyship as well as of
guaranty, is a guarantee of payment and performance and not merely of
collectability, and is in no way conditioned upon any attempt to collect from
or proceed against the Borrower or any other Person or any other event or
circumstance. The obligations of the Guarantor under this Agreement are direct
and primary obligations of the Guarantor and are independent of the Guaranteed
Obligations, and a separate action or actions may be brought
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against the Guarantor regardless of whether action is brought against the
Borrower or any other Person or whether the Borrower or any other Person is
joined in any such action or actions.
2.02. OBLIGATIONS ABSOLUTE. The Guarantor agrees that the
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the Loan Documents, regardless of any law, regulation or order now
or hereafter in effect in any jurisdiction affecting the Guaranteed
Obligations, any of the terms of the Loan Documents or the rights of the Lender
or any other Person with respect thereto. The obligations of the Guarantor
under this Agreement shall be absolute, unconditional and irrevocable,
irrespective of any of the following:
(a) Any lack of genuineness, legality, validity,
enforceability or allowability (in a bankruptcy, insolvency, reorganization or
similar proceeding, or otherwise), or any avoidance or subordination, in whole
or in part, of any Loan Document or any of the Guaranteed Obligations.
(b) Any increase, decrease or change in the amount, nature,
type or purpose of any of the Guaranteed Obligations (whether or not
contemplated by the Loan Documents as presently constituted); any change in the
time, manner, method or place of payment or performance of, or in any other
term of, any of the Guaranteed Obligations; any execution or delivery of any
additional Loan Documents; or any amendment, modification or supplement to, or
refinancing or refunding of, any Loan Document or any of the Guaranteed
Obligations.
(c) Any failure to assert any breach of or default under any
Loan Document or any of the Guaranteed Obligations; any extensions of credit in
excess of the amount committed under or contemplated by the Loan Documents, or
in circumstances in which any condition to such extensions of credit has not
been satisfied; any other exercise or non-exercise, or any other failure,
omission, breach, default, delay or wrongful action in connection with any
exercise or non-exercise, of any right or remedy against the Borrower or any
other Person under or in connection with any Loan Document or any of the
Guaranteed Obligations; any refusal of payment or performance of any of the
Guaranteed Obligations, whether or not with any reservation of rights against
the Guarantor; or any application of collections (including but not limited to
collections resulting from realization upon any direct or indirect security for
the Guaranteed Obligations) to other obligations, if any, not entitled to the
benefits of this Agreement, in preference to Guaranteed Obligations entitled to
the benefits of this Agreement, or if any collections are applied to Guaranteed
Obligations, any application to particular Guaranteed Obligations.
(d) Any taking, exchange, amendment, modification,
supplement, termination, subordination, release, loss or impairment of, or any
failure to protect, perfect, or preserve the
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value of, OR any enforcement of, realization upon, or exercise of rights or
remedies under or in connection with, or any failure, omission, breach,
default, delay or wrongful action by the Lender or any other Person in
connection with the enforcement of, realization upon, or exercise of rights or
remedies under or in connection with, OR any other action or inaction by the
Lender or any other Person in respect of, any direct or indirect security for
any of the Guaranteed Obligations. As used in this Agreement, "direct or
indirect security" for the Guaranteed Obligations, and similar phrases,
includes but is not limited to any collateral security, guaranty, suretyship,
letter of credit, capital maintenance agreement, put option, subordination
agreement or other right or arrangement of any nature providing direct or
indirect assurance of payment or performance of any of the Guaranteed
Obligations, made or on behalf of any Person.
(e) Any merger, consolidation, liquidation, dissolution,
winding-up, charter revocation or forfeiture, or other change in, restructuring
or termination of the corporate structure or existence of, the Borrower or any
other Person; any bankruptcy, insolvency, reorganization or similar proceeding
with respect to the Borrower or any other Person; or any action taken or
election made by the Lender (including but not limited to any election under
Section 1111(b)(2) of the United States Bankruptcy Code), the Borrower or any
other Person in connection with any such proceeding.
(f) Any defense, setoff or counterclaim (excluding only the
defense of full, strict and indefeasible payment and performance), which may at
any time be available to or be asserted by the Borrower or any other Person
with respect to any Loan Document or any of the Guaranteed Obligations; or any
discharge by operation of law or release of the Borrower or any other Person
from the performance or observance of any Loan Document or any of the
Guaranteed Obligations.
(g) Any other event or circumstance, whether similar or
dissimilar to the foregoing, and whether known or unknown, which might
otherwise constitute a defense available to, or limit the liability of, the
Guarantor, a guarantor or a surety, excepting only full, strict and
indefeasible payment and performance of the Guaranteed Obligations in full.
2.03. WAIVERS, ETC. The Guarantor hereby waives any defense
to or limitation on its obligations under this Agreement arising out of or
based on any event or circumstance referred to in Section 2.02 hereof. Without
limitation, the Guarantor waives each of the following:
(a) All notices, disclosures and demands of any nature which
otherwise might be required from time to time to preserve intact any rights
against the Guarantor, including without limitation the following: any notice
of any event or circumstance described in Section 2.02 hereof; any notice
required by any law,
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regulation or order now or hereafter in effect in any jurisdiction; any notice
of nonpayment, nonperformance, dishonor, or protest under any Loan Document or
any of the Guaranteed Obligations; any notice of the incurrence of any
Guaranteed Obligation; any notice of any default or any failure on the part of
the Borrower or any other Person to comply with any Loan Document or any of the
Guaranteed Obligations or any direct or indirect security for any of the
Guaranteed Obligations; and any notice of any information pertaining to the
business, operations, condition (financial or otherwise) or prospects of the
Borrower or any other Person.
(b) Any right to any marshalling of assets, to the filing of
any claim against the Borrower or any other Person in the event of any
bankruptcy, insolvency, reorganization or similar proceeding, or to the
exercise against the Borrower or any other Person of any other right or remedy
under or in connection with any Loan Document or any of the Guaranteed
Obligations or any direct or indirect security for any of the Guaranteed
Obligations; any requirement of promptness or diligence on the part of the
Lender or any other Person; any requirement to exhaust any remedies under or in
connection with, or to mitigate the damages resulting from default under, any
Loan Document or any of the Guaranteed Obligations or any direct or indirect
security for any of the Guaranteed Obligations; any benefit of any statute of
limitations; and any requirement of acceptance of this Agreement, and any
requirement that the Guarantor receive notice of such acceptance.
(c) Any defense or other right arising by reason of any law
now or hereafter in effect in any jurisdiction pertaining to election of
remedies (including but not limited to anti-deficiency laws, "one action" laws
or the like), or by reason of any election of remedies or other action or
inaction by the Lender (including but not limited to commencement or completion
of any judicial proceeding or nonjudicial sale or other action in respect of
collateral security for any of the Guaranteed Obligations), which results in
denial or impairment of the right of the Lender to seek a deficiency against
the Borrower or any other Person or which otherwise discharges or impairs any
of the Guaranteed Obligations.
2.04. REINSTATEMENT. This Agreement shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment of any of the Guaranteed Obligations is avoided, rescinded or must
otherwise be returned by the Lender for any reason (including, without
limitation, by reason of such payment being a preference or fraudulent
conveyance), all as though such payment had not been made.
2.05. NO STAY. Without limitation of any other provision of
this Agreement, if any declaration of default or acceleration or other exercise
or condition to exercise of rights or remedies under or with respect to any
Guaranteed Obligation
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shall at any time be stayed, enjoined or prevented for any reason (including
but not limited to stay or injunction resulting from of the pendency against
the Borrower or any other Person of a bankruptcy, insolvency, reorganization or
similar proceeding), the Guarantor agrees that, for purposes of this Agreement
and its obligations hereunder, the Guaranteed Obligations shall be deemed to
have been declared in default or accelerated, and such other exercise or
conditions to exercise shall be deemed to have been taken or met.
2.06. PAYMENTS. All payments to be made by Guarantor pursuant
to this Agreement shall be made at the times and in the manner prescribed for
payments in Section 2.09 of the Credit Agreement, without setoff, counterclaim,
withholding or other deduction of any nature.
2.07. SUBROGATION, ETC. The Guarantor hereby agrees that any
and all rights it now has or hereafter may have (known and unknown, whether
arising by operation of law, by agreement or otherwise) against the Borrower or
any other Person arising from the existence, payment, performance or
enforcement of any of the obligations of the Guarantor under or in connection
with this Agreement, including without limitation any and all rights of
subrogation, reimbursement, exoneration, contribution and indemnity or similar
rights which the Guarantor may have against the Borrower at any time shall be
subordinate in any and all events to any and all rights which the Lender may
have against the Borrower in respect of the Guaranteed Obligations, and the
Guarantor will not enforce any such right until the Guaranteed Obligations have
been paid and performed in full and all commitments to extend credit under the
Loan Documents have been fully terminated.
2.08. CONTINUING GUARANTY. This Agreement is a continuing
agreement and shall continue in full force and effect (notwithstanding that no
Guaranteed Obligations may be outstanding from time to time, or any other event
or circumstance) until all Guaranteed Obligations and all other amounts payable
under this Agreement have been paid and performed in full, and all commitments
to extend credit under the Loan Documents have terminated, subject in any event
to reinstatement in accordance with Section 2.04 hereof. Any purported
termination, revocation or discharge of this Agreement shall be void and of no
effect. For purposes of this Agreement the Guaranteed Obligations shall not be
deemed to have been paid in full until the Lender shall have received payment
of the Guaranteed Obligations in full and in cash and all commitments to extend
credit under the Loan Documents have terminated.
2.09. SUBORDINATION. The Guarantor further agrees that any
and all present and future debts and obligations of the Borrower, any endorser,
or any guarantor of any part or all of the Guaranteed Obligations to the
Guarantor and any and all claims of the Guarantor against the Borrower, any
endorser, or any guarantor
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of any part or all of the Guaranteed Obligations, or any of their respective
properties, howsoever arising, shall be subordinate and subject in right of
payment to the prior payment, in full, of the Guaranteed Obligations and as
security for this Agreement, the Guarantor hereby assigns to the Lender all
claims of any nature which the Guarantor may now or hereafter have against the
Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to the Lender as
follows:
3.01. CORPORATE STATUS. The Guarantor and each Subsidiary of
the Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. The Guarantor and
each Subsidiary of the Guarantor has corporate power and authority to own its
property and to transact the business in which it is engaged or presently
proposes to engage. The Guarantor and each Subsidiary of the Guarantor is duly
qualified to do business as a foreign corporation and is in good standing in
all jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary or advisable. Schedule
4.01 to the Credit Agreement states as of the date hereof the jurisdiction of
incorporation of the Guarantor and each Subsidiary of the Guarantor, and the
jurisdictions in which the Guarantor and each Subsidiary of the Guarantor is
qualified to do business as a foreign corporation.
3.02. CORPORATE POWER AND AUTHORIZATION. The Guarantor has
corporate power and authority to execute, deliver, perform, and take all
actions contemplated by, this Agreement, and all such action has been duly and
validly authorized by all necessary corporate proceedings on its part.
3.03. EXECUTION AND BINDING EFFECT. This Agreement has been
duly and validly executed and delivered by the Guarantor. This Agreement
constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the availability of
equitable remedies.
3.04. GOVERNMENTAL APPROVALS AND FILINGS. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority is or will be necessary or advisable in
connection with execution and delivery of this Agreement by the Guarantor,
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consummation by the Guarantor of the transactions herein contemplated,
performance of or compliance with the terms and conditions hereof by the
Guarantor or to ensure the legality, validity, binding effect, enforceability
or admissibility in evidence hereof.
3.05. ABSENCE OF CONFLICTS. Neither the execution and
delivery of this Agreement by the Guarantor, nor consummation by the Guarantor
of the transactions herein contemplated, nor performance of or compliance with
the terms and conditions hereof by the Guarantor does or will
(a) violate or conflict with any Law, or
(b) violate, conflict with or result in a breach of any term
or condition of, OR constitute a default under, OR result in (or give rise to
any right, contingent or otherwise, of any Person to cause) any termination,
cancellation, prepayment or acceleration of performance of, OR result in the
creation or imposition of (or give rise to any obligation, contingent or
otherwise, to create or impose) any Lien upon any property of the Guarantor or
any Subsidiary of the Guarantor pursuant to, OR otherwise result in (or give
rise to any right, contingent or otherwise, of any Person to cause) any change
in any right, power, privilege, duty or obligation of the Guarantor or any
Subsidiary of the Guarantor under or in connection with,
(i) the articles of incorporation or by-laws (or other
constituent documents) of the Guarantor or any Subsidiary of the
Guarantor,
(ii) any material agreement or instrument creating, evidencing or
securing any Indebtedness or Guaranty Equivalent to which the
Guarantor or any Subsidiary of the Guarantor is a party or by which
any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound, or
(iii) any other material agreement or instrument to which the
Guarantor or any Subsidiary of the Guarantor is a party or by which
any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound.
3.06. ACCURATE AND COMPLETE DISCLOSURE. All information
heretofore, contemporaneously or hereafter provided (orally or in writing) by
or on behalf of the Guarantor or any Subsidiary of the Guarantor to the Lender
pursuant to or in connection with any Loan Document or any transaction
contemplated hereby or thereby is or will be (as the case may be) true and
accurate in all material respects on the date as of which such information is
dated (or, if not dated, when received by the Lender) and does not or will not
(as the case may be) omit to state any material fact necessary to make such
information not
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misleading at such time in light of the circumstances in which it was provided.
The Guarantor has disclosed to the Lender in writing every fact or circumstance
which has, or which could have, a Material Adverse Effect.
3.07. SUBSIDIARIES. Schedule 4.13 to the Credit Agreement
states as of the date hereof the authorized capitalization of each Subsidiary
of the Guarantor, the number of shares of each class of capital stock issued
and outstanding of each such Subsidiary, and the number and percentage of
outstanding shares of each such class of capital stock owned by the Guarantor.
The outstanding shares of each Subsidiary of the Guarantor have been duly
authorized and validly issued and are fully paid and nonassessable. The
Guarantor owns beneficially and of record and has good title to all of the
shares it is listed as owning in such Schedule 4.13, free and clear of any
Lien. There are no options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
(contingent or otherwise) which may in any circumstances now or hereafter
obligate any Subsidiary of the Guarantor to issue any shares of its capital
stock.
3.08. PARTNERSHIPS, ETC. The Guarantor is not a partner
(general or limited) of any partnership or a party to any joint venture nor
does the Guarantor own (beneficially or of record) any equity or similar
interest in any Person (including but not limited to any interest pursuant to
which the Guarantor has or may in any circumstance have an obligation to make
capital contributions to, or be generally liable for or on account of the
liabilities, acts or omissions of such other Person), except for capital stock
of Subsidiaries of the Guarantor referred to in Section 3.07 hereof.
3.09. OWNERSHIP AND CONTROL. Schedule 4.15 to the Credit
Agreement states as of the date hereof the authorized capitalization of the
Guarantor and the number of shares of each class of capital stock issued and
outstanding of the Guarantor. The outstanding shares of capital stock of the
Guarantor have been duly authorized and validly issued and are fully paid and
nonassessable.
3.10. LITIGATION. There is no pending or (to the Guarantor's
knowledge after due inquiry) threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting the
Guarantor or any Subsidiary of the Guarantor, except for (i) matters that if
adversely decided, individually or in the aggregate, could not have a Material
Adverse Effect and (ii) the matters set forth on Schedule 4.16 to the Credit
Agreement.
3.11. ABSENCE OF EVENTS OF DEFAULT. No event has occurred and
is continuing and no condition exists which constitutes an Event of Default or
Potential Default.
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3.12. ABSENCE OF OTHER CONFLICTS. Neither the Guarantor nor
any Subsidiary of the Guarantor is in violation of or conflict with, or is
subject to any contingent liability on account of any violation of or conflict
with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other
constituent documents), or
(c) any agreement or instrument to which it is party or by
which it or any of its properties (now owned or hereafter acquired) may be
subject or bound, except for matters that, individually or in the aggregate,
could not have a Material Adverse Effect.
3.13. INSURANCE. The Guarantor and each Subsidiary of the
Guarantor maintains with financially sound and reputable insurers insurance
with respect to its properties and business and against at least such
liabilities, casualties and contingencies and in at least such types and
amounts as is customary in the case of corporations engaged in the same or a
similar business or having similar properties similarly situated.
3.14. TITLE TO PROPERTY. The Guarantor and each Subsidiary of
the Guarantor has good and marketable title in fee simple to all real property
owned or purported to be owned by it and good title to all other property of
whatever nature owned or purported to be owned by it, in each case free and
clear of all Liens, except as set forth in Schedule 4.20 to the Credit
Agreement and other Liens permitted by Section 7.03 of the Credit Agreement.
3.15. INTELLECTUAL PROPERTY. The Guarantor and each
Subsidiary of the Guarantor owns, or is licensed or otherwise has the right to
use, all the patents, trademarks, service marks, names (trade, service,
fictitious or otherwise), copyrights, technology (including but not limited to
computer programs and software), processes, data bases and other rights, free
from burdensome restrictions, necessary to own and operate its properties and
to carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others.
3.16. TAXES. All tax and information returns required to be
filed by or on behalf of the Guarantor or any Subsidiary of the Guarantor have
been properly prepared, executed and filed. All taxes, assessments, fees and
other governmental charges upon the Guarantor or any Subsidiary of the
Guarantor or upon any of their respective properties, incomes, sales or
franchises which are due and payable have been paid.
3.17. EMPLOYEE BENEFITS. No accumulated funding deficiency
(as defined in section 302 of ERISA and section 412 of
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the Code), whether or not waived, exists with respect to any Plan. No liability
to the PBGC has been or is expected by the Guarantor or any Controlled Group
Member to be incurred with respect to any Plan by the Guarantor, any Subsidiary
of the Guarantor or any Controlled Group Member which does or would have a
Material Adverse Effect. Neither the Guarantor, any Subsidiary of the Guarantor
nor any Controlled Group Member has contributed or presently contributes to any
Multiemployer Plan. The execution and delivery of this Agreement and the
consummation of the transactions contemplated by the Credit Agreement will be
exempt from, or will not involve any transaction which is subject to, the
prohibitions of section 406 of ERISA and will not involve any transaction in
connection with which a penalty could be imposed under section 502(i) of ERISA
or a tax could be imposed pursuant to section 4975 of the Code. A copy of the
most recent Annual Report (5500 Series Form) as of the date hereof including
all attachments thereto as filed with the Internal Revenue Service for each
Plan has been provided to the Lender and fairly presents the funding status of
each Plan. There has been no material deterioration in any Plan's funding
status since the date of such Annual Report. Schedule 4.23 to the Credit
Agreement sets forth as of the date hereof a list of all Plans and
Multiemployer Plans, and all information available to the Guarantor with
respect to the direct, indirect or potential withdrawal liability to any
Multiemployer Plan of any Loan Party or any Controlled Group Member. Except as
set forth in such Schedule 4.23, no Loan Party and no Subsidiary of any Loan
Party has any liability (contingent or otherwise) for, or in connection with,
and none of their respective properties is subject to a Lien in connection
with, any Pension-Related Event. No Loan Party and no Subsidiary of any Loan
Party has any liability (contingent or otherwise) for, or in connection with,
any Postretirement Benefits. The PBGC premiums and contributions required to
meet the minimum funding requirements of ERISA and the Code for all Plans have
not exceeded $1,000,000 on an annual basis for any of the past three (3) years.
The amount of unfunded benefit liabilities (as defined in Section 4001(a)(16)
of ERISA), as certified to by the Plan's actuary, for any Plan do not exceed
$1,000,000 and for all Plans do not exceed $1,000,000.
3.18. ENVIRONMENTAL MATTERS.
(a) The Guarantor and each Subsidiary of the Guarantor and
each of their respective Environmental Affiliates is and has been in full
compliance with all applicable Environmental Laws, except for matters which,
individually or in the aggregate, could not have a Material Adverse Effect.
There are no circumstances that may prevent or interfere with such full
compliance in the future.
(b) The Guarantor and each Subsidiary of the Guarantor and
their respective Environmental Affiliates have all Environmental Approvals
necessary or desirable for the ownership and operation of their respective
properties, facilities and
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businesses as presently owned and operated and as presently proposed to be
owned and operated, except for matters which, individually or in the aggregate,
could not have a Material Adverse Effect.
(c) There is no Environmental Claim pending or to the
knowledge of the Guarantor after due inquiry threatened, and there are no past
or present acts, omissions, events or circumstances that could form the basis
of any Environmental Claim, against the Guarantor or any Subsidiary of the
Guarantor or any of their respective Environmental Affiliates, except for
matters which, if adversely decided, individually or in the aggregate, could
not have a Material Adverse Effect.
(d) No facility or property now or previously owned, operated
or leased by the Guarantor or any Subsidiary of the Guarantor or any of their
respective Environmental Affiliates is an Environmental Cleanup Site. Neither
the Guarantor nor any Subsidiary of the Guarantor nor any of their respective
Environmental Affiliates has directly transported or directly arranged for the
transportation of any Environmental Concern Materials to any Environmental
Cleanup Site. No Lien exists, and no condition exists which could result in the
filing of a Lien, against any property of the Guarantor or any Subsidiary of
the Guarantor or any of their respective Environmental Affiliates, under any
Environmental Law.
3.19. SOLVENCY. On and as of the date hereof, after
consummation of the transactions contemplated in the [Sixth] Amendment to
Credit Agreement and after giving effect to all Revolving Credit Loans, Letters
of Credit and other obligations and liabilities incurred pursuant to the Credit
Agreement, and on the date of each subsequent Revolving Credit Loan, issuance
of a Letter of Credit or other extension of credit under the Credit Agreement
and after giving effect to application of the proceeds thereof in accordance
with the terms of the Loan Documents, the Guarantor is and will be Solvent.
3.20. NO CONDITIONS PRECEDENT. There are no conditions
precedent to the effectiveness of this Guaranty that have not been satisfied or
waived.
3.21. NO RELIANCE. The Guarantor has, independently and
without reliance upon the Lender and based upon such documents and information
as it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement.
3.22. USE OF PROCEEDS. Neither the Guarantor nor any
Subsidiary of the Guarantor owns or has any present intention of acquiring any
"margin stock" as defined in Regulation G (12 CFR Part 207) of the Board of
Governors of the Federal Reserve System (herein called "margin stock"). None of
the proceeds of borrowings under the Credit Agreement have been used, directly
or indirectly, for the purpose, whether immediate, incidental or
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13
ultimate, of purchasing or carrying any margin stock or for the purpose of
maintaining, reducing or retiring any Indebtedness which was originally
incurred to purchase or carry any stock that is currently a margin stock or for
any other purpose which might constitute this transaction a "purpose credit"
within the meaning of such Regulation G. Neither the Guarantor nor any agent
acting on its behalf has taken or will take any action which might cause this
Agreement or the Revolving Credit Note to violate Regulation G, Regulation T or
any other regulation of the Board of Governors of the Federal Reserve System or
to violate the Exchange Act, in each case as in effect now or as the same may
hereafter be in effect.
3.23. REGULATORY STATUS. Neither the Borrower, the Guarantor
nor any Subsidiary of the Borrower or the Guarantor is (i) an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" or an "affiliate" of a "holding company" or
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Act of 1935, as amended, or (iii) a "public utility" within the meaning
of the Federal Power Act, as amended.
3.24. PERMITS AND OTHER OPERATING RIGHTS. The Guarantor and
each Subsidiary of the Guarantor has all such valid and sufficient certificates
of convenience and necessity, franchises, licenses, permits, operating rights
and other authorizations from federal, state, regional, municipal and other
local regulatory bodies or administrative agencies or other governmental bodies
having jurisdiction over the Guarantor or such Subsidiary or any of its
respective properties, as are necessary for the ownership, operation and
maintenance of its businesses and properties, subject to exceptions and
deficiencies which do not materially affect the business and operations of the
Guarantor or such Subsidiary or any material part thereof, and such
certificates of convenience and necessity, franchises, licenses, permits,
operating rights and other authorizations from federal, state, regional,
municipal and other local regulatory bodies or administrative agencies or other
governmental bodies having jurisdiction over the Guarantor or such Subsidiary
or any of its properties are free from burdensome restrictions or conditions of
an unusual character or restrictions or conditions materially adverse to the
business or operations of the Guarantor or such Subsidiary, and neither the
Guarantor nor any Subsidiary is in violation of any thereof in any material
respect.
3.25. REPRESENTATIONS AND WARRANTIES REMADE AT EACH EXTENSION
OF CREDIT. Each request (including any deemed request) by the Borrower for any
extension of credit under any Loan Document shall be deemed to constitute a
representation and warranty by the Guarantor to the Lender that the
representations and warranties made by the Guarantor in this Article III are
true and correct on and as of the date of such request with the same effect as
though made on and as of such date. Failure by the
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Lender to receive notice from the Guarantor to the contrary before the Lender
makes any extension of credit under any Loan Document shall constitute a
further representation and warranty by the Guarantor to the Lender that the
representations and warranties made by the Borrower in this Article III are
true and correct on and as of the date of such extension of credit with the
same effect as though made on and as of such date.
ARTICLE IV
AFFIRMATIVE COVENANTS
The Guarantor agrees that, until all Guaranteed Obligations
and all other amounts payable under this Agreement have been paid in full and
all commitments to extend credit under the Loan Documents have terminated, the
Guarantor will do the following:
4.01. INFORMATION. The Guarantor will promptly furnish to the
Lender such information and in such form as the Lender may reasonably request
from time to time.
4.02. NOTICE OF CERTAIN EVENTS. The Guarantor also covenants
that immediately after any Responsible Officer obtains knowledge of:
(i) an Event of Default or Potential Default;
(ii) the occurrence of a Change of Control Event;
(iii) any material adverse change in the business
condition (financial or otherwise), operations or prospects
of the Guarantor or any Subsidiary of the Guarantor;
(iv) any pending or threatened action, suit, proceeding
or investigation by or before any Governmental Authority
against or affecting the Guarantor or any Subsidiary of the
Guarantor, except for matters that if adversely decided,
individually or in the aggregate, could not have a Material
Adverse Effect;
(v) any material violation, breach or default by the
Guarantor or any Subsidiary of the Guarantor of or under any
agreement or instrument material to the business operations,
condition (financial or otherwise) or prospects of the
Guarantor and its Subsidiaries taken as a whole;
(vi) any Pension-Related Event;
(vii) the expiration or earlier termination of the License
Agreement; or
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(viii) any proposed amendment, waiver, consent or other
change to the terms of any of the Term Loan Documents;
the Guarantor will deliver to the Lender written notice specifying the nature
and period of existence thereof and what action the Guarantor proposes to take
with respect thereto and, in the case of a Pension-Related Event, such written
notice shall be accompanied by (A) a copy of any notice, request, return,
petition or other document received by the Guarantor or any Controlled Group
Member from any Person, or which has been or is to be filed with or provided to
any Person (including without limitation the Internal Revenue Service, PBGC or
any Plan participant, beneficiary, alternate payee or employer representative),
in connection with such Pension-Related Event, and (B) in the case of any
Pension-Related Event with respect to a Plan, the most recent Annual Report
(5500 Series), with attachments thereto, and the most recent actuarial
valuation report, for such Plan.
4.03. INSURANCE. The Guarantor shall, and shall cause each
Subsidiary of the Guarantor to, maintain with financially sound and reputable
insurers insurance with respect to its properties and business and against such
liabilities, casualties and contingencies and of such types and in such amounts
as is customary in the case of other corporations of established reputations
engaged in the same or similar businesses or having similar properties
similarly situated.
4.04. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND
PRIORITY CLAIMS. The Guarantor shall, and shall cause each of its Subsidiaries
to, pay or discharge
(i) on or prior to the date on which penalties
attach thereto, all taxes, assessments and other governmental
charges imposed upon it or any of its properties;
(ii) on or prior to the date when due, all lawful claims
of materialmen, mechanics, carriers, warehousemen, landlords
and other like Persons which, if unpaid, might result in the
creation of a Lien upon any such property; and
(iii) on or prior to date when due, all other lawful
claims which, if unpaid, might result in the creation of a
Lien upon any such property or which, if unpaid, might give
rise to a claim entitled to priority over general creditors
of the Guarantor or such Subsidiary in a case under Title 11
(Bankruptcy) of the United States Code, as amended;
provided, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, the Guarantor or such Subsidiary need
not pay or discharge any such tax,
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assessment, charge or claim so long as (x) the validity thereof is contested in
good faith and by appropriate proceedings diligently conducted and (y) such
reserves or other appropriate provisions as may be required by GAAP shall have
been made therefor.
4.05. PRESERVATION OF CORPORATE STATUS. The Guarantor shall,
and shall cause each of its Subsidiaries to, maintain its status as a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and to be duly qualified to do
business as a foreign corporation and in good standing in all jurisdictions in
which the ownership of its properties or the nature of its business or both
make such qualification necessary or advisable.
4.06. GOVERNMENTAL APPROVALS AND FILINGS. The Guarantor
shall, and shall cause each Subsidiary of the Guarantor to, keep and maintain
in full force and effect all Governmental Actions necessary or advisable in
connection with execution and delivery of this Agreement by the Guarantor and
the Credit Agreement by the Borrower, consummation by the Guarantor and the
Borrower of the transactions herein or therein contemplated, performance of or
compliance with the terms and conditions hereof or thereof by the Guarantor and
the Borrower or to ensure the legality, validity, binding effect,
enforceability or admissibility in evidence hereof or thereof.
4.07. MAINTENANCE OF PROPERTIES. The Guarantor shall and
shall cause each Subsidiary of the Guarantor to, maintain or cause to be
maintained in good repair, working order and condition the properties now or
hereafter owned, leased or otherwise possessed by it (ordinary wear and tear
excepted) and shall make or cause to be made all needful and proper repairs,
renewals, replacements and improvements thereto so that the business carried in
connection therewith may be properly and advantageously conducted at all times.
The Guarantor shall, and shall cause each of its Subsidiaries to, procure and
maintain in full force and effect all franchises, patents, trademarks, trade
names, service marks, copyrights, licenses and other rights, in each case, that
are necessary in any material respect for the business and operation of the
Guarantor and its Subsidiaries, taken as a whole.
4.08. AVOIDANCE OF OTHER CONFLICTS.
(a) The Guarantor shall not, and shall not permit any of its
Subsidiaries to, violate or conflict with, be in violation of or conflict with,
or be or remain subject to any liability (contingent or otherwise) on account
of any violation or conflict with:
(i) any Law;
(ii) its certificate of incorporation or by-laws (or
other constituent documents); or
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(iii) any agreement or instrument to which it is a party
or by which any of them or any of their respective
Subsidiaries is a party or by which any of them or any of
their respective properties (now owned or hereafter acquired)
may be subject or bound;
except for matters that could not, individually or in the aggregate, have a
Material Adverse Effect.
(b) The Guarantor shall, and shall cause each of its
Subsidiaries and each of its Environmental Affiliates to, comply with, or
operate pursuant to valid waivers of, applicable Environmental Laws, including,
without limitation, to the extent required by applicable Environmental Laws,
conducting, on a timely basis, periodic tests and monitoring for contamination
of ground water, surface water, air and land and for biological toxicity and
completing proper, thorough and effective clean-up, removal, remediation and/or
restoration, except to the extent that failure so to comply with any
Environmental Law does not have a Material Adverse Effect, and except that,
with respect to any testing, monitoring, clean-up, removal, remediation or
other such action required pursuant to such laws or permits, neither the
Guarantor nor any of its Subsidiaries or Environmental Affiliates shall be
required to perform any such action if the applicability or validity thereof is
being contested in good faith by appropriate proceedings and adequate reserves
have been established in accordance with GAAP.
4.09. FINANCIAL ACCOUNTING PRACTICES. The Guarantor shall,
and shall cause each Subsidiary of the Guarantor to, make and keep books,
records and accounts which, in reasonable detail, accurately and fairly reflect
its transactions and dispositions of its assets and maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(a) transactions are executed in accordance with management's general or
specific authorizations, (b) transactions are recorded as necessary (i) to
permit preparation of financial statements in conformity with generally
accepted accounting principles and (ii) to maintain accountability for assets,
(c) access to assets is permitted only in accordance with management's general
or specific authorization and (d) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
4.10. CONTINUATION OF OR CHANGE IN BUSINESS. The Guarantor
shall, and shall cause each of its Subsidiaries to, continue to engage in its
business substantially as conducted and operated during the present and
preceding fiscal year, and the Guarantor shall not, and shall not permit any
Subsidiary of the Guarantor to, engage in any other business.
4.11. CONSOLIDATED TAX RETURN. The Guarantor shall not, and
shall not suffer any of its Subsidiaries to, file or consent to the filing of
any consolidated income tax return with
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any Person other than the Borrower, the Guarantor, Black Box Corporation and
their respective subsidiaries.
4.12. FISCAL YEAR. The Guarantor shall not, and shall not
suffer any of its Subsidiaries to, change its fiscal year or fiscal quarter.
4.13. INSPECTION OF PROPERTY. The Guarantor shall permit any
Person designated by the Lender in writing, at the Guarantor's expense while an
Event of Default is continuing and otherwise at the Lender's expense, to visit
and inspect any of the properties of the Guarantor and its Subsidiaries, to
examine the corporate books and financial records of the Guarantor and its
Subsidiaries and make copies thereof or extracts therefrom and to discuss the
affairs, finances and accounts of any of such corporations with the directors,
officers and key employees of the Guarantor or their independent public
accountants, all at such reasonable times and as often as the Lender may
reasonably request.
4.14. COVENANT TO SECURE REVOLVING CREDIT NOTE AND
REIMBURSEMENT OBLIGATIONS EQUALLY. The Guarantor covenants that, if it or any
Subsidiary of the Guarantor shall create or assume any Lien upon any of its
property or assets, whether now owned or hereafter acquired, other than Liens
permitted by the provisions of Section 5.01 (unless prior written consent to
the creation or assumption thereof shall have been obtained pursuant to Section
6.01), it shall make or cause to be made effective provision satisfactory in
form and substance to the Lender (including, without limitation, opinions of
counsel relating thereto) whereby the Revolving Credit Note and the
Reimbursement Obligations shall be secured by such Lien equally and ratably
with any and all other Indebtedness thereby secured so long as any such other
Indebtedness shall be so secured. Securing the Revolving Credit Note and the
Reimbursement Obligations as provided in this Section 4.14 shall not permit the
existence of any Lien not permitted by Section 5.01.
ARTICLE V
NEGATIVE COVENANTS
The Guarantor hereby covenants that, until all Guaranteed
Obligations and all other amounts payable under this Agreement have been paid
in full and all commitments to extend credit under the Loan Documents have
terminated:
5.01. LIENS. The Guarantor shall not, and shall not permit
any of its Subsidiaries to, at any time create, incur, assume or suffer to
exist any Lien on any of its property (whether now owned or hereafter acquired
and whether or not provision is made for equally and ratably securing the
Revolving Credit Note and the Reimbursement Obligations as provided in Section
4.14 hereof and Section 6.13 of the Credit Agreement), except for the
following:
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(i) Liens existing as of May 6, 1994, securing
obligations existing as of May 6, 1994, as such Liens and
obligations are listed in Schedule 7.03 to the Credit
Agreement;
(ii) Liens arising from taxes, assessments, charges or
claims described in Section 4.04 that are not yet due or that
remain payable without penalty or to the extent permitted to
remain unpaid under the proviso to Section 4.04;
(iii) Liens (other than ERISA Liens) incurred or deposits
or pledges of cash or securities in the ordinary course of
business to secure (a) workmen's compensation, unemployment
insurance or other social security obligations, (b)
performance of bids, tenders, trade contracts (other than for
payment of money) or leases, (c) stay, surety or appeal
bonds, or (d) other obligations of a like nature incurred in
the ordinary course of business, provided that such Liens do
not, in the aggregate, materially detract from the value of
the property and assets of the Guarantor and its Subsidiaries
or impair the use thereof by the Guarantor and its
Subsidiaries or the operation of their respective businesses;
(iv) Liens consisting of Capitalized Leases, provided
that (a) such Lien is created before or substantially
simultaneously with the purchase of the property that is the
subject of such Capitalized Lease, (b) such Lien is confined
solely to the property so leased, improvements thereto and
proceeds thereof, (c) the amount secured by such Lien
described in this Section 5.01(iv) shall not at any time
exceed the lesser of cost or fair market value (plus
installation costs, to the extent they have not be expensed)
of the property so leased; (d) the Indebtedness represented
by such Capitalized Leases is permitted by Sections 5.07,
5.08 and 5.09 of that certain Guaranty and Suretyship
Agreement, dated as of May 6, 1994, made by MB
Communications, Inc. (n/k/a Black Box Corporation) in favor
of the Lender (as amended, the "Black Box Guaranty") and, to
the extent applicable, Article VII of the Credit Agreement;
and (e) no Potential Default or Event of Default shall have
occurred and be continuing or shall occur after giving effect
thereto or the lease of such property; and
(v) Liens on property securing all or part of the
purchase price thereof and Liens (whether or not assumed)
existing in property at the time of purchase
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thereof by the Borrower or a Subsidiary of the Borrower,
provided that (a) such Lien is created before or
substantially simultaneously with the purchase of such
property, (b) such Lien is confined solely to the property so
purchased, improvements thereto and proceeds thereof, (c) the
amount secured by such Lien described in this Section 5.01(v)
shall not at any time exceed the lesser of cost or fair
market value of the property so purchased; (d) the
Indebtedness secured by such Lien is permitted by Sections
5.07, 5.08 and 5.09 of the Black Box Guaranty and, to the
extent applicable, Article VII of the Credit Agreement; and
(e) no Potential Default or Event of Default shall have
occurred and be continuing or shall occur after giving effect
thereto or the purchase of such property; and
(vi) Liens renewing or extending any Lien described in
clauses (i), (iv) and (v) above, provided (a) neither the
Indebtedness secured thereby is increased nor the weighted
average life to maturity thereof reduced as a result thereof,
(b) such Lien is confined solely to the property so purchased
or leased, improvements thereto and proceeds thereof; (c) the
Indebtedness secured thereby is permitted under Sections
5.07, 5.08 and 5.09 of the Black Box Guaranty and, to the
extent applicable, Article VII of the Credit Agreement; and
(d) no Potential Default or Event of Default shall have
occurred and be continuing or shall occur after giving effect
thereto.
5.02. CAPITAL EXPENDITURES. The Guarantor shall not, and
shall not permit any Subsidiary of the Guarantor to, make any Capital
Expenditures on or after the date hereof, except for Capital Expenditures not
in excess of $3,500,000 in the aggregate by Black Box Corporation, the sole
shareholder of the Guarantor, the Guarantor and their respective Subsidiaries
in any fiscal year.
5.03. DIVIDENDS AND RELATED DISTRIBUTIONS. The Guarantor
shall not, and shall not permit any Subsidiary of the Guarantor to, declare or
make any Stock Payment, except as follows:
(a) So long as no Event of Default or Potential Default shall
have occurred and be continuing or shall occur after giving
effect thereto, Stock Payments made directly or indirectly to
Black Box Corporation (the "Parent") or, in the case of any
Subsidiary of the Guarantor, to the Guarantor for the
purposes of paying reasonable administrative costs and
salaries of the Parent's or, in the case of Stock Payments
made directly or indirectly to the Guarantor by any
Subsidiary of the Guarantor, the Guarantor's employees,
paying taxes and paying expenses incurred in the ordinary
course of
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business; provided, that no Stock Payment pursuant to this
Section 5.03(a) may be made if, after giving effect to such
Stock Payment, the aggregate amount of Stock Payments made
during any fiscal year of the Guarantor, together with any
loans and advances made by the Borrower pursuant to Section
7.06(b)(ii) of the Credit Agreement (other than to the Parent
for the purpose of paying in full the Indebtedness secured by
the Senior Subordinated Indenture) during such fiscal year,
would exceed $1,500,000;
(b) So long as no Event of Default or Potential Default shall
have occurred and be continuing or shall occur after giving
effect thereto, Stock Payments to the Guarantor for the
purpose of making Stock Payments to the extent permitted by
Section 5.03 of the Black Box Guaranty;
(c) Stock Payments to the Parent for the purpose of repaying
certain Indebtedness of the Parent to the Borrower in the
principal amount of $43,670,000;
(d) Stock Payments made by the Borrower to the Guarantor so
long as the proceeds thereof shall be loaned to the Borrower
as permitted by Section 7.04 of the Credit Agreement; and
(e) A Subsidiary of the Borrower may declare and make Stock
Payments if all of the capital stock of such Subsidiary is
owned by the Borrower or by a direct or indirect wholly-owned
Subsidiary of the Borrower.
5.04. LIMITATION ON OTHER RESTRICTIONS ON LIENS. The
Guarantor shall not enter into, become or remain subject to any agreement or
instrument to which the Guarantor is a party or by which it or any of its
properties (now owned or hereafter acquired) may be subject or bound that would
prohibit the grant of any Lien upon any of its properties (now owned or
hereafter acquired), except the Loan Documents and the Term Loan Documents.
ARTICLE VI
MISCELLANEOUS
6.01. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Agreement, and no consent to any departure by the Guarantor
herefrom, shall in any event be effective unless in a writing manually signed
by or on behalf of the Lender. Any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
6.02. NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or
failure of the Lender in exercising any right or remedy under this Agreement
shall operate as a waiver thereof; nor shall any
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single or partial exercise of any such right or remedy preclude any other or
further exercise thereof or the exercise of any other right or remedy. The
rights and remedies of the Lender under this Agreement are cumulative and not
exclusive of any other rights or remedies available hereunder, under any other
agreement or instrument, by law, or otherwise.
6.03. NOTICES. Except to the extent, if any, otherwise
expressly provided hereunder, all notices, requests, demands, directions and
other communications (collectively "notices") under this Agreement shall be in
writing (including telexed and telefaxed communication) and shall be sent by
first-class mail, by nationally-recognized overnight courier, by personal
delivery, or by telex or telefax (with confirmation by first-class mail,
nationally-recognized overnight courier, or personal delivery), in all cases
with charges prepaid. All notices shall be sent, if to the Guarantor, to its
address specified on the signature page hereof, or if to the Lender, to its
address specified in the Credit Agreement, or, in any case, to such other
address as shall have been designated by the applicable party by notice to the
other party hereto. Any properly given notice shall be effective on the
earliest to occur of receipt, telephone confirmation of receipt of telecopy
communication, one (1) Business Day after delivery to a nationally-recognized
overnight courier, or three (3) Business Days after deposit in the mail. The
Lender may rely on any notice (whether or not made in a manner contemplated by
this Agreement) purportedly made by or on behalf of the Guarantor, and the
Lender shall have no duty to verify the identity or authority of the Person
giving such notice.
6.04. EXPENSES. Without limitation of any other rights the
Lender may have, the Guarantor agrees to pay upon demand all reasonable
expenses (including but not limited to reasonable fees and expenses of counsel)
which the Lender may incur from time to time arising from or relating to the
administration of, or exercise, enforcement or preservation of rights or
remedies under, this Agreement.
6.05. PRIOR UNDERSTANDINGS. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof and supersedes all prior and contemporaneous understandings and
agreements.
6.06. SURVIVAL. All representations and warranties of the
Guarantor contained in or made in connection with this Agreement shall survive,
and shall not be waived by, the execution and delivery of this Agreement, any
investigation by or knowledge of the Lender, any extension of credit, or any
other event or circumstance whatever.
6.07. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument.
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6.08. SETOFF. In the event that at any time any obligation of
the Guarantor now or hereafter existing under this Agreement shall have become
due and payable, the Lender shall have the right from time to time, without
notice to the Guarantor, to set off against and apply to such due and payable
amount any obligation of any nature of the Lender to the Guarantor, including
but not limited to all deposits (whether time or demand, general or special,
provisionally credited or finally credited, however evidenced) now or hereafter
maintained by the Guarantor with the Lender. Such right shall be absolute and
unconditional in all circumstances and, without limitation, shall exist whether
or not the Lender shall have given any notice or made any demand under this
Agreement or under such obligation to the Guarantor, whether such obligation to
the Guarantor is absolute or contingent, matured or unmatured (it being agreed
that the Lender may deem such obligation to be then due and payable at the time
of such setoff), and regardless of the existence or adequacy of any collateral,
guaranty or other direct or indirect security, right or remedy available to the
Lender. The rights of the Lender under this Section are in addition to such
other rights and remedies (including, without limitation, other rights of
setoff and banker's lien) which the Lender may have, and nothing in this
Agreement or in any other Loan Document shall be deemed a waiver of or
restriction on the right of setoff or banker's lien of the Lender. The
Guarantor hereby agrees that, to the fullest extent permitted by law, any
affiliate of the Lender, and any holder of a participation in any obligation of
the Guarantor under this Guaranty, shall have the same rights of setoff as the
Lender as provided in this Section (regardless of whether such affiliate or
participant otherwise would be deemed a creditor of the Guarantor).
6.09. CONSTRUCTION. The section and other headings contained
in this Agreement are for reference purposes only and shall not affect
interpretation of this Agreement in any respect. This Agreement has been fully
negotiated between the applicable parties, each party having the benefit of
legal counsel, and accordingly neither any doctrine of construction of
guaranties or suretyships in favor of the guarantor or surety, nor any doctrine
of construction of ambiguities in agreements or instruments against the party
controlling the drafting thereof, shall apply to this Agreement.
6.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Guarantor, its successors and assigns, and shall inure to the benefit
of and be enforceable by the Lender and its successors and assigns. Without
limitation of the foregoing, the Lender (and any successive assignee or
transferee) from time to time may assign or otherwise transfer all or any
portion of its rights or obligations under the Loan Documents (including,
without limitation, all or any portion of any commitment to extend credit), or
any other Guaranteed Obligations, to any other Person, and such Guaranteed
Obligations (including, without limitation,
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24
any Guaranteed Obligations resulting from extension of credit by such other
Person under or in connection with the Loan Documents) shall be and remain
Guaranteed Obligations entitled to the benefit of this Agreement, and to the
extent of its interest in such Guaranteed Obligations such other Person shall
be vested with all the benefits in respect thereof granted to the Lender in
this Agreement or otherwise.
6.11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
(b) CERTAIN WAIVERS. THE GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF
CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR
THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN ALLEGHENY
COUNTY, PENNSYLVANIA, SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND
TO THE FULLEST EXTENT PERMITTED BY LAW AGREES THAT IT WILL NOT BRING
ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE LENDER TO BRING ANY ACTION, SUIT OR PROCEEDING
IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO
THE LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH
COURT, WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH
RESPECT TO ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH
COURT DOES NOT HAVE JURISDICTION OVER THE GUARANTOR;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY
REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE GUARANTOR
AT THE ADDRESS FOR NOTICES DESCRIBED IN THIS AGREEMENT, AND CONSENTS
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID
AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR
EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW);
AND
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY THE GUARANTOR OR ANY OTHER PERSON AGAINST THE
LENDER OR ANY AFFILIATE, DIRECTOR,
- 24 -
25
OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF THE LENDER FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM ARISING FROM OR
RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION,
OR EVENT OCCURRING IN CONNECTION HEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT
OR ANY OTHER THEORY OF LIABILITY); AND THE GUARANTOR HEREBY WAIVES, RELEASES
AND AGREES NOT TO XXX UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT
ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
IN WITNESS WHEREOF, the undersigned has caused this Agreement
to be duly executed and delivered as of the date first above written.
BBOX HOLDING COMPANY
By /s/ XXXXXXX XXXXXXX
--------------------------
Title: President
Address for Notices:
0000 Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxxxx X. Xxxxx
Telephone: 412/000-0000 Telefax:
412/873-6784
